Unlawful detained (eviction) action in Tennessee

Unlawful detained (eviction) action: "In an unlawful detainer action, a tenant has certain defenses, such as 'constructive eviction' , default by the landlord of the implied warranty of habitability, or a 'retaliatory eviction', which occurs when the landlord takes an action against a tenant for trying to exercise rights as a tenant (such as informing government agencies of code violations or complaining to the landlord regarding repairs that must be made to maintain the rental property in habitable condition)."

This site gives a good summary definition of what may happen if you are being evicted from your home. Though your obligations as a tenant are largely contractual, the process is heavily regulated by the Tennessee Landlord Tenant Act.

Revocable Trusts in Tennessee

The revocable trust has become in Tennessee, as in many jurisdictions, the functional equivalent to a will in estate planning. It is, in effect, a will substitute with its primary goal as one of determining the persons to receive the trust property upon the trustor's death.

The rules for interpreting the disposition of one's property, then, are virtually the same, if not absolutely the same, as whether the person has chosen a will or a living (revocable) trust as that person's primary estate planning instrument.

Tennessee law (TCA 35-15-601) provides that the capacity required to form a trust is the same as that required to create a will and that a living trust is for the most part, the equivalent of the will.

Also, trusts are more flexible than wills and allow for the mention and reference to wills, codicils, and life insurance policies as part of its custody and control. Of course, the most obvious benefit is the ease by which it may be revoked or amended, as compared to the more formal requirements of the last will and testament.

Detainer Action

Detainer Action: "A landlord or apartment complex brings a detainer action to evict a tenant who has not paid the rent. The landlord usually gets a judgment for “possession” of the apartment plus back rent and attorney fees. The tenant has ten days in which to file an appeal. After ten days, if no appeal is filed, the landlord can obtain a writ of possession, which is a court order directing the sheriff to forcibly remove the tenant and his belongings from the property. In practice, the sheriff is present to supply the force of law, but the landlord supplies the manpower to move the personal belongings. The belongings are usually placed at the nearest public road.

The tenant is allowed a “reasonable” amount of time to collect his belongings. Depending on the circumstances, the “reasonable” amount of time can be as short as 24 hours to as long as 24 days!"

This is what happens when a detainer warrant is filed with the court.

What is a bailment?

We just had a case where the concept of bailment was a central issue. Essentially, a bailment is where personal property is delivered to another with an agreement that the same personal property will later be returned to the owner. The bailor is the person who delivers the property and the bailee is the one who accepts delivery. Bailment is a contract and its terms may be either express or implied from the conduct of the parties.

Crucial to the legality of the bailment is the delivery. The bailor must give over exclusive control of the property to the bailee, so that the bailee exercises custody and control of the property. The bailee then becomes potentially liable to the bailor if the property either is not returned, or returned damaged.

What is a discharge in Bankruptcy?

U.S. Courts Bankruptcy Basics Discharge: "A bankruptcy discharge releases the debtor from personal liability for certain specified types of debts. In other words, the debtor is no longer legally required to pay any debts that are discharged. The discharge is a permanent order prohibiting the creditors of the debtor from taking any form of collection action on discharged debts, including legal action and communications with the debtor, such as telephone calls, letters, and personal contacts.
Although a debtor is not personally liable for discharged debts, a valid lien (i.e., a charge upon specific property to secure payment of a debt) that has not been avoided (i.e., made unenforceable) in the bankruptcy case will remain after the bankruptcy case. Therefore, a secured creditor may enforce the lien to recover the property secured by the lien."

This comes right from the bankruptcy court page and fairly self explanatory.

Contesting a will in Tennessee

Invalidating a will because of undue influence is not a simple undertaking. While undue influence may be proved by either circumstantial of direct evidence, direct evidence is rarely available. Generally, the contestant must not only establish that their existed between the testator and the named executor a confidential or fiduciary relationship, but also that certain suspicious circumstances surrounding the transaction, such that the executor or beneficiary exercised dominion or control over the testator.

Some of the circumstances cited by courts include: the testator's physical or mental deterioration, the beneficiary's active involvement in procuring the will, secrecy concerning the will's existence, the testator's advanced age, lack of independent advice concerning drafting the will, and any discrepancies between the will and the testator's express intentions.

One of the responsibilities of a will drafter is to anticipate as best as possible any potential contests and to plan accordingly.

Tennessee's Foster Care

Tennessee's Foster Care Review Law was enacted to protect children from unnecessary separation from parents and from needless prolonged placement in foster care. It was also enacted to provide a mechanism to monitor the care of children in foster care to insure that a permanent plan for the child will be achieved if possible. T.C.A. § 37-2-401 et seq.

Foster care is defined in T.C.A. § 37-2-402(5) as:

The temporary placement of a child in the custody of the Department of Human Services or any agency, institution, or home whether public or private for care outside the home of a parent or relative (by blood or marriage) of the child whether such placement is by court order, voluntary placement agreement, surrender of parental rights, or otherwise.

An agency is required, within thirty (30) days of foster care placement, to prepare a plan for each child in its foster care. T.C.A. § 37-2-403. This plan must include a goal for the child and a statement of responsibilities between the parents, the agency and the case worker of the agency.

In addition to the plan for each child, the agency must submit a report for each child in its foster care to the appropriate court or advisory review board on its progress in achieving the goals in the plan. T.C.A. § 37-2-404. Such reports are to be made within six (6) months of foster care placement and every six (6) months thereafter for as long as the child remains in foster care.

"Court" is defined by the statute as "the juvenile court having jurisdiction over the person of the child, or if no juvenile court has jurisdiction over the child then the juvenile court in the county in which the child resides." T.C.A. § 37-2-402(3). "Board" is defined as "an adversary review board appointed by a juvenile court judge, juvenile court judges or the department of human services." T.C.A. § 37-2-402(2).

What is Contempt of Court?

Attorney Cynthia Bohn provides a great definition to this simple question. What is Contempt of Court? - Law Firm Cynthia J. Bohn & Associates Attorneys Nashville, Tennessee: "Tennessee recognizes two types of contempt; CIVIL and CRIMINAL. There are two types of criminal contempt: Direct Criminal Contempt is a contemptuous act (such as cursing the judge) in the Court's presence, where the Court sees or hears the contempt, and may be punished summarily. Indirect Criminal Contempt is based upon conduct committed outside the Court's presence (for example failure to pay court ordered child support) and is punishable only after notice has been given to the offender and he or she has had the opportunity to respond to the charge at a hearing. Civil contempt is distinguished from criminal contempt by the character and purpose of the punishment imposed. The critical feature that determines whether the contempt is civil or criminal in nature is not when or whether you are physically required to set foot in jail, but whether you can avoid the sentence imposed or purge yourself of it by complying with the terms of the court's order. In criminal contempt punishment is imposed unconditionally and you cannot escape by purging yourself of the con- tempt. Punishment for civil contempt, on the other hand, is imposed to compel an act and usually for the benefit of your former spouse. In civil contempt it has often been said that the convicted person holds the keys to the jail in his own pocket."

I run into this most frequently when I represent child support clients. My best advice is similar to a DUI attorney initially declaring: "Don't drive drunk."; my advice is "Pay your child support." If things go wrong, though, give me a call.

Reaffirmation of debts in Bankruptcy

According to U.S. Courts Bankruptcy Basics Chapter 7: "Secured creditors may retain some rights to seize property securing an underlying debt even after a discharge is granted. Depending on individual circumstances, if a debtor wishes to keep certain secured property (such as an automobile), he or she may decide to 'reaffirm' the debt. A reaffirmation is an agreement between the debtor and the creditor that the debtor will remain liable and will pay all or a portion of the money owed, even though the debt would otherwise be discharged in the bankruptcy. In return, the creditor promises that it will not repossess or take back the automobile or other property so long as the debtor continues to pay the debt."

In a Chapter 7, this is frequently the best way for the debtor to retain his or her property.

Rutherford Real Estate on WGNS Murfreesboro

I had a great time this morning as a guest of Chris Phillips and Dave Gober on their Saturday morning radio show, Rutherford Real Estate. We talked about Chapter 7 and 13 Bankruptcy and how this affects homeowners and prospective homeowners who have filed for bankruptcy in the last few years. Dave and Chris both have years of experience and knowledge to help someone with alternative solutions for tough times in regards to owning and financing a home and I can help answer questions to anyone who needs to talk about what options are available under the Federal Bankruptcy code.

Child Support Guildelines calculator

I receive a fair amount of questions regarding child support. Frequently, the question has to do with a proposed modification based upon the non-custodial parents losing a job or have a financial setback. Generally speaking, a significant change in income is required to revisit a prior child support order and modify and more often than not, a non-custodial parent losing a job would meet this standard.

Tennessee law authorizes the Department of Human Services to create and issue the "Child Support Guidelines." The parent who pays child support is usually called the "Alternative Residential Parent," and the parent who receives child support is usually called the "Primary Residential Parent." When the "Guidelines" are discussed, this usually refers to the Rules as issued by the DHS. These Rules have the authority of law and most, if not all, states have similar provisions in their law. "The Charts" refers to the charts published with the Guidelines which cross reference both parent's gross income with both parent's actual support obligation. The “Income Shares Model” is a phrase describing that under our new child support law (effective January 2005), both parents’ income are considered in determining child support.

Tennessee provides a helpful website to calculate how much could be owed.

How long will a Social Security decision take?

Deadlines do not exist for social security disability and SSI disability applications.

Statistically, the average is 90-120 days. Averages, however, tend to be very misleading. For instance, if one claim takes 180 days to complete (which is not at all uncommon) and another claim takes 2 days to complete (which almost never happens), the average of those two numbers is 91 days. In the Middle Tennessee area, waits as long as two years have been reported.

Typically, the social security office will dispense "average" information because, in the absence of doing this, they are unable to tell claimants anything about their claim status. Therefore, while a disability case is pending, it is always best to contact DDS and speak to the disability examiner assigned to the case. An attorney can keep track of your case and may be able to use practices and procedures to speed the process along.

Age Discrimination in Employment Act in Murfreesboro

This federal legislation is applicable to employers of more than 20 employees and covers individuals of 40 years of age or more. The key elements to consider if you feel that you have been denied employment, wrongfully terminated, or passed over for promotion or advancement opportunities because of your age:

• You are qualified for the position that you applied for or held;
• That you were replaced by someone outside of the protected class (under 40) and substantially younger than the claimant.

In other words, though a 41 year old who was passed over in favor of a 38 year old, would technically meet this criteria, a more successful claim would be a scenario where a highly experienced 55 year old employee was fired and a 25 year old with a fraction of the training and experience was hired instead.

If you feel that you have been discriminated against because of your age, call me and I can help to evaluate your case and assist you through the process. This kind of discrimination occurs more often than you might expect.

Why do I need a will?

1. You have minor children.
You should have a will in order to appoint guardians for your minor children, and trustees to manage their property. If you do not leave a will, the court may appoint a guardian whom you would not have chosen.

You also need to have a will in order to prevent minor children from inheriting real estate outright. Although minors have the legal capacity to own property, they do not have legal capacity to manage it. If your children inherit a share of your house, your spouse would not be able to sell it, rent it out, or even refinance the mortgage without a court order. Getting court orders is expensive and time consuming. Additionally, will provisions can be set up to restrict how and when young adults receive property. Would your 18 year old wisely manage a sizable inheritance on their own?

2. You have no children.
Do you know what would happen to your property if you died right now without a will? You might be surprised to find out that your spouse might not inherit everything. If you and your spouse have no children, your parents or siblings might inherit part of your home and become co-owners with your spouse. Your spouse would not be able to sell the house or other property without their permission, and vice versa. If you want to remember your parents or siblings in your will, it is best to leave them specific pieces of property that they will not have to share with your spouse.

3. You have a large family.
All of your heirs will become co-owners of every asset you own, and will have to manage all the property together. They may not live in the same state, or they may not be able to agree on what should be done with the property. The more heirs you have, the more money and effort they will have to spend trying to get organized. With a will, you could leave specific assets to specific heirs, or put one heir in charge as trustee for the others. Either way, having a will would save your heirs significant hassle and expense. It could also prevent acrimonious feuding.

4. You own real estate.
In the absence of a will, real estate may be inherited by minors or numerous co-owners, and either result may be costly or result in problems not easily anticipated. A little estate planning now can save your heirs significant expense and trouble later.

How a Living Trust can help you and your family

One way to minimize probate is through the creation of living trusts.

A living trust facilitates the transfer of property from any person, trust or entity to any person, trust or entity while you are alive and is much easier to amend or revoke than a will. One example is a Life Insurance trust whereby the trust, and not a named individual, is the beneficiary of the life insurance proceeds.

Some of the ways an attorney can help with an estate settlement include: Gathering the estate assets, whether in a living trust or not; evaluating your estate planning documents and determine what is required; creating Trustee authority; determining type, character and value of each asset; determining allocation, distribution and division of assets, balancing document requirements, Trustee obligations and tax planning options; transferring assets according to the estate documents or requirements of state law.

Even with a solid estate plan and extensive trust management, probate is not always avoidable, nor should it be. A living trust will be able to minimize probate when the trust is settled.

Civil litigation complaint

Whether your case involves a personal injury action concerning a car wreck or a suit filed to recover damages associated with a negligently constructed home, after attempts at settling a case have failed or approached the statute of limitations, the next step is to file a complaint.

In Tennessee, a personal injury lawsuit begins with the filing of a Complaint by the plaintiff against the defendants. That Complaint must set out a “prima facie” case, which is a Latin expression for “at first view.” A prima-facie case is a lawsuit that makes factual allegations that support the claim being brought under Tennessee or Federal law. In other words, assuming plaintiff can prove everything that she alleges, is there law that would make the defendant(s) liable for the harm suffered by the plaintiff?

In a personal injury case in Tennessee, the plaintiff’s lawyer must allege the elements of negligence. These elements include: There existed a duty between the plaintiff and defendant, the defendant breached that duty, and the plaintiff suffered a loss that was a proximate result of the defendants breach. (Put more simply, the Complaint in a car accident case lays out the bare facts of the accident and generally alleges injuries and other damages.) Practically, the plaintiff typically files a Complaint in the appropriate court and then the clerk of the court issues a summons and sends it back to the plaintiff’s lawyer to serve on the defendant(s) (there are fees associated with filing any personal injury lawsuit which vary according to jurisdiction). This Complaint must then be served on the defendants, by either certified mail, return receipt requested, or, as more typically is the case, by private process server or sheriff.

Special and General Damages

Many people ask about how their injuries translate into the more legal definition of damages. The exact terminologies can be deceptive and maybe confusing to those who are unfamiliar with the terms. The terms are inversely defined when dealing with tortuous claims as opposed to contracts to further confuse the subject. Here is a good explanation when dealing with torts:

Special damages are sought in lawsuits in addition to general damages. These two types are classified as Compensatory Damages and are both designed to return persons to the position they were in prior to the alleged injury.

For example, if a person was injured in an automobile accident, the victim could seek damages that would cover medical expenses, damage to the motor vehicle, and the loss of earnings now and in the future. Each of these would be classified as special damages. If the victim sought a money award for pain and suffering, mental anguish, and loss of consortium, these would be classified as general damages. Thus, special damages are based on measurable dollar amounts of actual loss, while general damages are for intangible losses that can be inferred from special damages as well as other facts surrounding the case. In this description special damages are damages that are reduced to a "sum certain" before trial.

Should you be paid salary or are you an hourly employee?

This question frequently comes up when a company brings someone on board and declares they are salary and will be paid a set amount regardless of how much time is worked. This more often than not works out in favor of the employer as the employee may put in hours and hours of time over forty hours a week, but is compensated at the set, flat rate.

The Federal Fair Labor Standards Act (FLSA) regulates employer-employee relations in regard to overtime pay and minimum wage. Some examples of occupations exempt from these regulations include:

Executive, administrative, and professional employees (including teachers and academic administrative personnel in elementary and secondary schools), outside sales employees, and employees in certain computer-related occupations (as defined in Department of Labor regulations);

Employees of certain seasonal amusement or recreational establishments, employees of certain small newspapers, seamen employed on foreign vessels, employees engaged in fishing operations, and employees engaged in newspaper delivery;

Farm workers employed by anyone who used no more than 500 "man-days" of farm labor in any calendar quarter of the preceding calendar year;

Casual babysitters and persons employed as companions to the elderly or infirm.

Certain commissioned employees of retail or service establishments; auto, truck, trailer, farm implement, boat, or aircraft sales-workers; or parts-clerks and mechanics servicing autos, trucks, or farm implements, who are employed by non-manufacturing establishments primarily engaged in selling these items to ultimate purchasers;

Employees of railroads and air carriers, taxi drivers, certain employees of motor carriers, seamen on American vessels, and local delivery employees paid on approved trip rate plans;
Announcers, news editors, and chief engineers of certain non-metropolitan broadcasting stations;

Domestic service workers living in the employer's residence;

Employees of motion picture theaters; and
Farm workers.

If you believe that you are being paid a salary, but should be paid hourly based upon the nature of your work, call an attorney to discuss your rights and what violations in which your employer may be engaged.

Subsequent marriages, insurance, and trusts

When a parent re-marries, it becomes more important than ever to protect life insurance proceeds designated for children. An occurrence that happens more frequently than might be expected is where the second wife changes the life insurance benefits to her name. If the re-married father and parent of children from a previous marriage dies, the second wife will receive all the benefits of the life insurance and none will go to help support the fathers biological children. When that wife dies, it is likely that the money will go to her biological children and the fathers children will again receive nothing. This was probably not what the father had in mind when he purchased the insurance and made the premium payments. Can anything be done to protect assets for descendants now? Absolutely.

How can you allow a portion of the money to be available for the benefit of a second or third wife and give part to your biological children? One way is through changes in the beneficiary designations. Although this can be difficult and some companies require the consent of the spouse, it is not impossible.

A better way, is to set up a revocable trust. The trust can designate who you would like to receive the proceeds and how you want the money distributed. Even better, once you create the trust, you can amend it.

It is best to create the trust before you get married, and amend it when you choose. Call for a free consultation if you think this situation applies to you.

Workers Compensation Statute of Limitations

The right to receive workers' compensation benefits does not stay open forever. An injured worker must file Form C40B, "Request for Benefit Review Conference," before the time limit runs out. Generally, that is one year from the date of injury, or the date the employer last paid temporary disability or medical bills. Some special circumstances can extend the time to file.

If you have been injured on the job, you should immediately report any work-related accident, injury or illness to your employer. Employer notification, preferably in writing, is required by law within 30 days of the date of injury or when a physician first tells the employee that his/her injury is work related.

Employers covered by the Tennessee Workers’ Compensation Act must submit all known or reported injuries or illnesses to their insurer on Tennessee Employer’s First Report of Work Injury or Illness (Form C-20) within one (1) working day of knowledge of the injury or illness. Insurance carriers and self-insured employers must file a Form C-20 with the Division through Electronic Data Interchange (EDI) as soon as possible, but not later than fourteen (14) days after knowledge of the injury or illness.

If you feel that your claim is not being processed correctly or at all, you should contact an attorney.

Second or None: A Celebration of Liberty

I'd like to join Barrett Firearms, Tennessee Gun Owners and The OutPost Armory in inviting everyone out to 5435 Miller Lane in Christiana directly off Exit 89 on I-24. This will be a celebration of our Second Amendment Rights. There will be food and fun activities for the kids, a great family get together.

Disorders of the Musculoskeletal System

One of the most frequent disorders is a broken bone or fracture.

A fracture is simply a break in the surface of the bone. Fractures are classified in one or a combination of three ways, 1) by the integrity of the overlying tissue, 2) by the specific location in the bone, and 3) by the degree of displacement.

From an attorney's standpoint, it is critical to keep any and all medical documentation as proof of your injury and probably to schedule a deposition of your doctor to show that your treatment was necessary and reasonable based upon the local standard of care.

Divorce action contempt of court

Reality TV star Jon Goselin may soon learn all about contempt of court after he allegedly emptied the couples joint checking account according to this New York Daily article.

Generally, at least here in Rutherford County, any divorce action, when filed, is issued a Restraining Order that, among other things, enjoins both parties from "transferring, assigning, borrowing against, concealing or in any way dissipating or disposing, without the consent of the other party or an order of the court, of any marital property."

Why many people file for Bankruptcy

Bad things happen to good people and tough times affect everyone. Many people who would not have dreamed about bankruptcy last year, are now considering the options, and even speaking to an attorney. Our office offers a free consultation and this is a great idea. The internet provides a wealth of information but the ability to speak with an attorney about your individual, unique situation is invaluable.

What are the factors that bring many people to this point?

1. Job loss or other financial setback
2. Medical expenses
3. divorce or legal separation
4. small business failures
5. foreclosure

If any of these factors or others have you thinking about whether bankruptcy is for you, give me a call, 893-1239.

Russ Eagle

Murfreesboro lost a good attorney last week. I only knew him for a couple of years but I was always impressed by his work ethic and his ubiquitous presence in court. He provided some good advice for me on several matters, was always kind and approachable. This notice was written on his behalf.

Unlawful employer drug tests

Employers can legally test employees for illegal drugs under certain conditions, but a Tennessee employer has found itself as the defendant in two suits alleging unfair and unlawful testing for prescription drugs. This article outlines what could be a warning to many employers about what can be done and what can cross a line.

"The fundamental question is, 'Was the testing job-related, and was there some business necessity to implement the testing program?' " Pattison said. "As a general rule, you can't just ask someone, 'Are you taking prescription medications?' "

What Are the Time Limits for Filing a Charge of Discrimination?

All laws enforced by EEOC, except the Equal Pay Act, require filing a charge with EEOC before a private lawsuit may be filed in court. There are strict time limits within which charges must be filed:

A charge must be filed with EEOC within 180 days from the date of the alleged violation, in order to protect the charging party's rights.

This 180-day filing deadline is extended to 300 days if the charge also is covered by a state or local anti-discrimination law. For ADEA charges, only state laws extend the filing limit to 300 days.

These time limits do not apply to claims under the Equal Pay Act, because under that Act persons do not have to first file a charge with EEOC in order to have the right to go to court.

However, since many EPA claims also raise Title VII sex discrimination issues, it may be advisable to file charges under both laws within the time limits indicated.

To protect legal rights, it is always best to contact EEOC promptly when discrimination is suspected.

Federal employees or applicants for employment should see Federal Sector Equal Employment Opportunity Complaint Processing.

Typically, I can meet with a prospective client and discuss with them the validity of the case and even help them with this first step. Once we receive the right to sue letter, or after a period of time has elapsed and the investigation has not completed we can request the right to sue letter, then we can file suit on that client's behalf.

Small estates in Tennessee

Usually, when a person dies, the decedent's family must open the estate and go through probate court. Many states, Tennessee included, provide for an easier and quicker alternative for smaller estates.

Tennessee law, Tennessee Code Annotated 30-4-102, provides for simplified probate when the value of the decedent's estate, under most circumstances, does not exceed $25,000. TCA 30-4-103 sets out the process by which a small estate can be administered.

Among the many differences between opening a probate in the usual manner and filing an affidavit for a small estate is that the filing fee for the small estate affidavit is much less expensive.

Blue Raiders beat Maryland again

I must take a Sunday hiatus from legal discussions to post this about our Blue Raiders who are making life rough for Coach Friedgen in College Park. Great game!

This from Adam Sparks of the Daily News Journal -
COLLEGE PARK, Md. — MTSU players hope Saturday's 32-31 win over Maryland is a step toward a bowl game later this season.

But after upsetting the Terps, an ACC member, for the second straight year, there was a different bowl game on the lips of the Blue Raiders.

"(The coaches) said this was our Super Bowl," MTSU senior cornerback Alex Suber said. "It was a big game. (Defensive coordinator Manny Diaz) put the stats up. There aren't too many schools — ACC or anybody, who come in here and beat Maryland. But we did. I feel like we came out to prove a point. They said they had a chip on their shoulder — revenge — but we feel like revenge is more of a fan type of thing."

MTSU sophomore Alan Gendreau made a 19-yard field goal on the final play to cap the Blue Raiders' second victory over Maryland in two years. The first win against the Terps in Murfreesboro last season was regarded as the best win in school history."

Tennessee Nursing Home abuse and neglect

Essentially, there are three types of nursing home cases: abuse, neglect, and medical malpractice.

Nursing home abuse is defined by federal law (42 C.F.R. 488.301) as the "willful infliction of injury, unreasonable confinement, intimidation or punishment with resulting physical harm, pain or mental anguish."

Abuse may involve:
Assault and battery (including sexual assault and battery)
Virtual imprisonment or unreasonable or unnecessary restraints
Deprivation of food, drink, medicine, or other basis necessities
Use of drugs not approved by a medical doctor or the knowing prescription of improper medication (usually some type of sedative in nursing home cases)
Mental abuse

Neglect differs from abuse in that abuse is done with intent; whereas neglect is the result of negligence and indifference. The standard for nursing home neglect is whether the caregiver acted (given the nursing home patient's situation or condition) as the ordinary reasonable provider in the same position would. It can be defined as failing to care for a resident to the degree, which a reasonable person in the same position would exercise. Federal law (42 C.F.R. 488.301) defines nursing home neglect as the "failure to provide goods and services necessary to avoid physical harm, mental anguish or mental illness."

Neglect may include any of the following:
Negligent physical or mental neglect
Negligent failure to prevent infection or bed sores (which require the patient to be monitored and regularly adjusted)
Negligent failure to alert medical doctors of medical problems
Negligent failure to prevent dehydration and malnutrition

Finally, medical malpractice is where a medical doctors does not provide the same level of care to someone who is elderly and in a nursing home than they would to other patients, effectively denying them adequate care. That many nursing home facilities are understaffed is no defense if a patient receives less than standard care.

Wills and Trusts

A Last Will and Testament is the fundamental estate planning document. A Will provides a basic set of instructions to your named executor as to how your assets should be distributed after your death. You make final provisions for your heirs and beneficiaries.

A Living Trust is similar to a Last Will and Testament, yet allows for the transfer of assets without the need for Probate or Estate Administration. Typically a living or inter vivos trust is created to avoid probate or at least to allow some property to pass outside of an estate. Many people use life insurance policies, or a combination of life insurance and trust instruments to do the same thing.

Avoiding probate can save thousands of dollars in an estate and can more easily distribute property and provides greater flexibility for the trustee or owner.

I have a friend who is a financial planner who has commented that many people postpone meeting with him because they think they need to have more money before they can invest. Postponing setting up a trust can be just as misguided. For a few hundred dollars, I could save your estate, and thus your heirs and beneficiaries, thousands.

Durable General Power of Attorney for Health Care

This is a very important and powerful legal document. Before executing this document you should know these important facts.
This document gives the person you designate as your Agent (the attorney-in-fact) the power to make health care decisions for you. Your Agent must act consistently with your desires as stated in this document.
Except as you otherwise specify in this document, this document gives your Agent the power to consent to your doctor not giving treatment or stopping treatment necessary to keep you alive.
Notwithstanding this document, you have the right to make medical and other health care decisions for yourself so long as you can give informed consent with respect to the particular decision. In addition, no treatment may be given to you over your objection, and health care necessary to keep you alive may not be stopped or withheld if you object at the time.
This document gives your Agent authority to consent, refuse to consent, or withdraw consent to any care, treatment, service or procedure to maintain, diagnose or treat a physical or mental condition. This power is subject to any limitations that you include in this document. You may state in this document any types of treatment that you do not desire. In addition, a court can take away the power of your Agent to make health care decisions for you, if your Agent:

(1) authorizes anything that is illegal, or

(2) acts contrary to your desires as stated in this document.

You have the right to revoke the authority of your Agent by notifying your Agent or your treating physician, hospital or other health care provider orally or in writing of the revocation.
Your Agent has the right to examine your medical records and to consent to their disclosure unless you limit this right in this document.
Unless you otherwise specify in this document, this document gives your Agent the power after you die to:

(1) authorize an autopsy,

(2) donate your body or parts thereof for transplant or therapeutic or educational or scientific purposes, and

(3) direct the disposition of your remains.

If there is anything in this document or about the process that you do not understand, you should ask a lawyer to explain it to you.

Tennessee Divorce

There are two basic ways one can take in order to obtain a divorce in Tennessee.

One is a no-fault divorce based upon the grounds of irreconcilable differences. To obtain an irreconcilable differences divorce in Tennessee, it is necessary that you and your spouse enter into a property settlement agreement or a Marital Dissolution Agreement. Additionally, if you have children, it will be necessary for you to enter into a Parenting Plan which will provide for co-parenting time for each parent and child support.

Once the divorce is filed, there is a sixty (60) day waiting period before the divorce can be granted when you do not have minor children. In the event you have minor children, there is a ninety (90) day waiting period. The spouse filing the divorce will need to attend the final divorce hearing.

In an irreconcilable differences divorce, it is not necessary for you to bring any witnesses. The divorce will become final thirty (30) days after the final order is entered.

The other method to obtain a divorce is by filing on grounds such as inappropriate marital conduct, adultery, desertion, etc. Under this method, a Complaint is prepared which you sign, and is served upon your spouse. The spouse will have thirty (30) days in which to respond to the Complaint.

In any divorce based on grounds other than irreconcilable differences, it will be necessary that you prove your grounds by testimony in open court. In addition, the court normally requires at least two witnesses appear to corroborate your testimony. At the final hearing, the court will make a decision as to the matters of co-parenting time, child support, alimony, and division of property.

In the event it is necessary, a court often has a temporary hearing called a pendente lite hearing for the questions of temporary support, temporary alimony, temporary attorney’s fees, and temporary co-parenting time, during the pendency of the divorce case. This is not a final hearing. The court’s decision is only in effect until the final hearing. It is just an initial determination made with a minimum amount of proof. The most frequent reason to have a pendente lite hearing is to determine temporary child support until the divorce is granted.

A divorce based upon irreconcilable differences is usually the preferable means of obtaining a divorce if you and your spouse are able to reach an equitable property settlement agreement. The legal fees that you and your spouse will incur in a contested divorce are substantially more compared with the minimal charges for divorces based on irreconcilable differences. In addition, you and your spouse can normally reach a more equitable and more agreeable property settlement than the court will make for you.

Herniated Disc

What is a herniated disc?

Spinal discs are round cushions that lie in between the vertebrae of the spinal column. These discs basically act like shock absorbers between the vertebrae, cushioning them when we contort our bodies in everyday life. These discs have an external shell and a liquid substance in the middle. The metaphor often used with juries in personal injury cases is that the discs are like jelly donuts. If a disc is injured as the result of the trauma of an auto accident, the "jelly" may leak out of the disc. If the inner core of the disc extrudes back into the spinal canal it may impact a nerve root. The weak spot in a disc is directly under the nerve root and a herniated disc can put great pressure on the nerve, which can cause pain to radiate throughout the person's body.

Where the pain radiates to in the body depends on where the disc herniation occurs. When a patient has a symptomatic herniated disc, the pain is not in the disc area; rather, the disc herniation is pinching a nerve in the spine that causes 'radicular' pain. This radicular pain is typically described as a pain that shoots through the body, usually to one area in particular, since each nerve in the spine is connected to a particular area of the body. This pain can be nerve root pain, leg pain if the herniation is in the lumbar (back), or arm pain from a cervical (neck) herniated disc.

A herniated disc is rarely diagnosed in the emergency room after an auto accident. This is because the disc is invisible on an x-ray. Accordingly, a patient typically needs a CT scan or magnetic resonance imaging (MRI) test so that a physician can pick up a disc herniation. A discography, myelography, or an electromyography are also used to diagnose herniated discs. It is worth noting that the experts agree that these diagnostic tests cannot diagnose the injury victim's pain. There is no clear cut correlation between the degree of the hernination and the patient pain symptoms because there are so many other variables involved.

Who can get Social Security Disability benefits

A person is entitled to receive Social Security Disability (SSD) benefits when they are no longer able to perform a substantial gainful activity, or SGA, as the result of a physical or mental impairment that is expected to last at least 12 months, or possibly result in death.

To satisfy the definition of disability used by Social Security, a person's disability or impairment must meet or equal the level of severity described by the Social Security Administration (SSA). The SSA lists and documents lots of conditions, ranging from arthritis and high blood pressure to asthma, heart failure, and depression. Satisfying the SSA criteria will guarantee a disability approval. However, it is very difficult to win a disability approval; thus the great frequency of early denials. Most individuals will qualify for social security benefits another way---basically where their disabling condition is severe enough that they are unable to perform their past work while earning at least a substantial monetary amount each month. Currently the SGA amount is $900.00 before taxes.

Additionally, in this process, it must be concluded that the individual is not capable of doing certain "other work". What exactly is other work? Other work that a claimant might possibly do must be related, according to the SSA, to several factors: a person's age, level of education, and the type of work they did in the past. For example, a person with a 10th grade education who cannot do their past work will not be expected to perform other work that goes beyond their educational limits. Likewise, individuals with mental impairments (low IQ or depression or anxiety) will not be expected to perform other work that requires detailed attention and concentration. Finally, individuals who are physically incapable of doing more than sedentary work will never be expected to perform work that requires medium (lifting 50 lbs on an occasional basis) or even light (lifting 25 lbs on an occasional basis) exertion.

Foreseeability and negligence

A blackletter rule of law is that failure to take reasonable steps to prevent unreasonable risk of injury from reasonably foreseeable accidents is negligence. Tennessee follows many jurisdictions with a balancing test to determine the extent of the precautions required. The burden of providing the precaution must not be greater than the potential harm.

For example, it would be unreasonably burdensome for a merchant to hire bodyguards to personally escort patrons from the parking lot, through their store to shop and then back to the visitors vehicle. The cost of such precaution would be prohibitive even though it would probably guarantee the shopper's safety. However, if a business is located in an area known as a high crime area, in other words it is foreseeable based upon past acts of crime that more crime may occur, and that business takes no action whatsoever to safeguard those it has invited is probably negligent when a crime does occur and a patron is injured.

This article from Florida illustrates some of these principles.

Tennessee divorce

This article from Knoxville talks about how many divorces damaged by infidelity may still survive. Roughly 90% of the divorces I have handled have had at least allegations of infidelity. I think along with money troubles, that is the most frequent ground for divorce.

Tennessee visitation rights of grandparents

As with any discussion of children's custody and visitation, the key consideration for the court is the best interests of the child. The Tennessee statute that deals specifically with visitation is 36-6-306 and states in pertinent part that:

(a) Any of the following circumstances, when presented in a petition for grandparent visitation to the circuit, chancery, general sessions courts with domestic relations jurisdiction or juvenile court in matters involving children born out of wedlock of the county in which the petitioned child currently resides, necessitates a hearing if such grandparent visitation is opposed by the custodial parent or parents:
(1) The father or mother of an unmarried minor child is deceased;
(2) The child's father or mother are divorced, legally separated, or were never married to each other;
(3) The child's father or mother has been missing for not less than six (6) months;
(4) The court of another state has ordered grandparent visitation;
(5) The child resided in the home of the grandparent for a period of twelve (12) months or more and was subsequently removed from the home by the parent or parents (this grandparent-grandchild relationship establishes a rebuttable presumption that denial of visitation may result in irreparable harm to the child); or
(6) The child and the grandparent maintained a significant existing relationship for a period of twelve (12) months or more immediately preceding severance of the relationship, this relationship was severed by the parent or parents for reasons other than abuse or presence of a danger of substantial harm to the child, and severance of this relationship is likely to occasion substantial emotional harm to the child.

The circumstance that has most frequently come into play in my practice has been the scenario outlined in clauses (5) and (6) where the child resided with the grandparent for a significant period of time. DCS has as a priority the goal of re-uniting the children with the parents, but the grandparent does have rights that are protected by the state.

Tennessee's Castle Doctrine

The question is frequently asked and probably more frequently pondered, "What kind of force can I use to protect my property?" Urban legends abound concerning dragging would be assailants inside the threshold of one's home to prove entry. The rule, though, is fairly simple: Generally speaking, one may not use force that will cause death to defend only property; and one may not use deadly indirect force, such as a trap or spring gun, to defend property. Only reasonable force is permissible.

However, special rules apply to defending one's home, especially when oneself or one's family is present. Like many jurisdictions, Tennessee follows the "castle doctrine", which effectively states that one's place of residence is a place in which one enjoys unique protection from illegal trespassing and violent attack. A person may have the legal right to use deadly force to defend that place, and/or any other innocent persons legally inside it, from violent attack or an intrusion which may lead to violent attack. In a legal context, therefore, use of deadly force which actually results in death may be defended as justifiable homicide under the Castle Doctrine.

Tennessee Motorcycle accidents

Many people are surprised to learn that most motorcycle accidents are usually caused by the negligence of another motor vehicle. In fact, there are studies that maintain that over 80% of multi-vehicle accidents involving motorcycles are caused by the negligence of the driver of an automobile. Often, this occurs because motorcycles can stop much faster than cars and are thus more likely be rear-ended by a negligent driver following too closely or not paying attention.

Motorcycle accidents also occur when the driver of an automobile fails to yield the right of way. Regrettably, motorcycle accident victims are 21 times more likely to die than personal injury victims in a passenger car or truck. In an average year, 166,000 Americans will be hospitalized as a result of a motorcycle accident of which 4,700 will die. Per registered vehicle, the fatality rate for motorcyclists in 2004 was 4.1 times the fatality rate for passenger car occupants.

Statistical trends show that the costs in lives and injuries may be getting worse. In 1997, about 5 percent of the total number of traffic fatalities involved motorcycles; in the 2004 motorcycles accidents accounted for about 9 percent of the 42,800 traffic fatalities.

Auto makers and immunity from product liability claims

As General Motors and Chrysler have emerged from bankruptcy, each has publicized how it will deal with past, present and future product liability claims. This article outlines how GM will accept some liability while Chrysler's post bankruptcy incarnation will only accept claims from the new line.

The elements for liability in this area generally deals with conduct such as negligent design or manufacture. It will be interesting to see how legitimate claims against Chrysler will be handled if the claim arises from it's pre-bankruptcy status.

Guess Jeans co-founder ordered to pay $370 million in defamation lawsuit

This Los Angeles Times article explains a little about defamation and a little more about the importance of cooperating in a trial. Apparently, the defendant was not allowed to participate in the trial after he repeatedly failed to respond to pre-trial procedures and so the plaintiffs received a default judgment. He will most likely appeal and it will be interesting to see how much he does this time around.

I have stated to clients, prospective clients and even to an opposing defendant, that no matter how trivial they may see the lawsuit, it is imperative that they respond and file an answer.

Race discrimination

Title VII of the Civil Rights Act of 1964 protects individuals against employment discrimination on the bases of race and color, as well as national origin, sex, and religion. The EEOC keeps a page that explains this fully.

Additionally, harassment and a hostile work environment is prohibited. To begin the process, one would need to first contact the EEOC. Only after their investigation and after they have sent a letter stating that a lawsuit may proceed can an attorney step in to file suit.

The key is early communication and proper, thorough documentation of what happened.

Excessive force by police officers

Anyone who watched the media coverage in 1991 of the Rodney King incident and the terrible riots that ensued has at least a fundamental understanding of this legal concept.

A workable definition may be: Excessive force by a law enforcement officers is a violation of a person's rights. Excessive force is not subject to a precise definition, but it is generally beyond the force a reasonable and prudent law enforcement officer would use under the circumstances.
Force should be used in only the minimum amount needed to achieve a legitimate purpose. Police brutality is a direct violation of the laws within the police force. The use of excessive force is also a direct violation of the Fifth and Fourteenth Amendments of the U.S Constitution regarding cruelty and protection of the laws.

The key element to consider before contacting an attorney is whether the use of force was reasonable under the specific circumstances of the case at hand. If an arrestee is resisting in any way, the arresting officers may use reasonable force for their own protection and have a limited privelege here that does not extend to most other citizens.

Order of Protection

An order of protection is a civil order issued by the Tennessee court. The purpose of the order is to prevent one person from harming another. Only people that have specific types of relationships with each other can qualify for an order of protection.

Examples of these relationships are:
•Adults or minors who are current or former spouses;
• Adults or minors who live together or who have lived together;
• Adults or minors who are dating or who have dated or who have or had a sexual relationship;
• Adults or minors related by blood or adoption;
• Adults or minors who are related or were formerly related by marriage; or
• Adult or minor children of a person in a qualifying relationship.

Sexual assault victims and stalking victims may also qualify for orders of protection.

If an order of protection is issued by a Tennessee court, violating that order means the offender faces civil contempt and can serve time in jail, typically ten days per violation.

Whiplash

This term gets thrown around alot and I had the opportunity to do some research about what this is all about. This is actually a blanket term for a collection of pathological conditions of the neck, typically an acute sprain or strain and is the most common of all neck injuries.

Whiplash is characterized by neck pain and limitation of movement for the the neck and back and may frequently be caused by a person who has been in a car that is hit from behind. The duration of the symptoms depends on the severity of the injury, emotional factors, and other factors.

Treatment typically consists of a neck brace to immobilize the damaged muscles and ligaments, physical therapy to return the muscles and ligaments to proper functioning, and in some cases, drug therapy.

Pa. health club shooting gunman a 48-year-old man

Another tragic, senseless shooting at a public place where the deranged killer afterward took his own life. This AP story outlines the breaking news.

The question will certainly come as to what could have been done and even whether or not the club could have prevented this incident. The key to any question like this is foreseeability. Any premises liability question hinges on this and in Tennessee, there is a balancing question as to whether the burden of preventing such an accident is greater than the gravity of harm. Here, I cannot imagine how this could be foreseeable, this was such a random event.

However, if this were a restaurant where a muddy, slippery entrance was allowed, and the burden of preventing a fall would simply be to improve the walkway, the balance shifts to the premises owner. Or a bar in a high crime area could prevent a shooting by hiring a security guard to work nights, or a downtown mall hiring roving security for the parking lots. In these cases, the burden of some kind of preventative measure is far less than the gravity of the potential harm.

The key is foreseeability and in the suburban club shooting, could this have been anticipated or any kind of contingency plan made? It is unlikely.

Truck Accidents

Doing some research for a client, I found some startling statistics on truck accidents. There are more than three accidents a minute where an American is injured or killed in a truck accident. Thousands of people in this country every year are injured or lose their lives in truck accidents involving tractor-trailers, 18 wheelers, big rigs, fire engines, semi trucks, and other large commercial vehicles. Most frequently, these accidents are on highways, I-24, I-40 and I-65. Poor driving, overworked drivers that are being paid by the mile, over sized truck loads and various other unsafe practices increase the dangers in operating these heavy trucks that weigh over 80,000 lbs and the average passenger car weights approximately 3,000 pounds. No match!

While working my way through law school, I worked for a trucking company and I have some idea about how these businesses are run.

A lawyer must consider whether the company that hired the driver may also be responsible under the theory of negligent entrustment or negligent supervision if they failed to properly screen the truck driver before the accident or if they failed to properly train the truck driver. It is amazing how many operators of trucks are improperly trained or have unacceptable driving records. There can also be a claim for negligent maintenance, a related legal theory lawyers pursue in truck accident cases when the company and/or truck driver failed to properly maintain the truck. Some companies in the region have a horrible reputation for hitting our streets with an aging, poorly maintained fleet.

In these truck accidents, 97% of fatal truck accidents are victims in passenger cars or trucks, not at-fault driver of the commercial truck. But the trucking industry is a $600 billion dollar business and these companies have many qualified truck accident lawyers at their disposal to vigorously fight personal injury claims from injured victims. We can stand up to these companies to get fair compensation for our clients who have been injured in a truck accident. We will look at logbooks, receipts and other crucial evidence to find the evidence to bring about a just result.

In Defense of 'Deadbeat' Dads

Our practice finds us on both sides of this controversial issue, defending not only the custodial parent's right to receive help raising the child but also the non-custodial parent's needs and ability to pay. This article outlines some of the tough decisions policy makers have before them and the answers that are all too often lacking in the most crucial element of the case: the best interests of the child.

Disability benefit claims surging

This Associated Press article outlined some signs of the times. "The agency denies nearly two-thirds of initial claims, but claimants disputing a decision can appeal to an administrative law judge. That process is so cumbersome, nearly 750,000 people are waiting for a hearing. Some wait years to resolve their claim, but about 61 percent of those who appeal are ultimately approved for benefits."

The key to success, ultimately, is the determination of the claimant and the competence of their representative. The problem, one of the problems, is that it takes a long time, even with an attorney pushing to make things happen.

Texting Increases Risk Of Auto Accidents

This seems like an overly obvious statement. We have a client who was rear-ended by a teenager texting as she came up to a red light. In a case like this, liability should be clear where there is evidence that the negligent party was texting or for that matter doing anything that may have contributed to the accident. A good attorney will be able to identify causes that will most effectively attach liability on the other party. A good insurance company, though, will know how to protect their interests as well, so sign nothing or make no agreements until you've spoken to an attorney.

Many vets file claims against VA

This DNJ article describes a coming flood of litigation for the VA. The plaintiff's attorney will need to show causation and establish clear proof of liability and damages.
"The VA has said for months that there is no way to prove that the positive tests for infectious diseases stem from exposure to improperly cleaned or erroneously rigged equipment while getting colonoscopies at Murfreesboro or Miami or while getting treatment at the ear, nose and throat clinic in Augusta."

Social Security Disability claims for mental disorders

This is an area that does not get enough attention but effects many people. This article outlines some of the elements and problems with such a claim.

Designated shooters

This New York Times commentary pokes some fun at our recently enacted law concerning expanding gun owners right to carry concealed weapons into bars and restaurants. This line stands out: "states acted last week to make it easier for armed gun owners to hang out with drunk people". I think the problem is that illegal gun carriers have always been, and remain, able to carry their weapons anywhere they like.

Child Custody: Who wins?

There has been much talk lately about Michael Jackson's children and who will ultimately get custody of the two children. This Los Angeles Times article has some good explanations of the process.

The correct answer of "who wins" should be the children. The best interests of the children is the term that controls any discussion of child custody. As UCLA professor Altman correctly states, when one parent dies, generally, the other parent gets custody as the natural parents have constitutionally protected superior rights.

We have received many calls recently about child custody matters and currently are working on several cases. This can be an emotionally charged environment and a good attorney should be able to calmly work with his client through the process, while always keeping the best interests of the child in the forefront of our litigation.

Is bankruptcy the right choice?

This very question has come up frequently over the past few months and the answer or solution always lies in the particular facts unique to every individual. About half of the the people who have called or made an appointment to talk with me, I have advised them to try some other things first. Some people, though, are eligible for bankruptcy relief and look forward to the clean start that this constitutionally mandated relief can provide. This article outlines some of the elements to consider, and a consultation with an attorney can also produce some welcome insight during tough times.

What to expect at a Social Security disability hearing

Many people know that applying for social security benefits is no guarantee of receiving benefits. Frequently, the first application is denied and this begins the appeals process. It is during the appeals process that we most often come into the case. This article describes the third stage in the process, the hearing.

Attorney: Pair were defending home

A good article about a police error and citizens who were charged nonetheless.

Man jailed for child support, even though he was not the father, released

We have been doing a lot of child support / child custody work lately and here is an interesting story from Atlanta. This also ties back to my post about how I can defend someone who is "guilty". He may technically be guilty of contempt, but justice sometimes exists outside the bounds of technicality.

Happy client at Tennessee Gun Owners

Here is a great quote from a client who posted at Tennessee Gun Owners.

More than 600 arrests

Perhaps the single most frequent question I have had since becoming an attorney who does some criminal defense work has been "How can you defend someone who is guilty?" The question itself is misleading, as in our society, everyone is presumed innocent until proven guilty. Just because someone is accused does not make them guilty of anything, or if they have done something illegal, their guilt may not be for what they were accused. I zealously defend my clients and seek for them a fair procedure, be it a trial, sentence or plea agreement. This article from the Daily News Journal outlines some of the apprehensions and hasty generalizations involved with criminal defense work.

Breach of contract attacked in Smyrna

This Murfreesboro Daily News Journal article describes a breach of contract by a local fitness center and what members have done to respond.

The elemental components of any contract are offer, acceptance and consideration. Here, what the fitness center offered and what was accepted by members, and the bargained for consideration exchanged, turned out to be less than what was understood. The Knoxville based fitness center assigned it's memberships to another center, a seemingly legitimate move, but members see this as a breach because it is not what they bargained for and not the same value for the money they are contractually obligate to pay.

We see breaches of contract most frequently in a landlord-tenant setting and these transactions are strictly regulated by Tennessee statute. However, a breach can occur in many ways, as this article demonstrates.

Tennessee's new gun law is a non-issue for restaurant owners

Looks like on the surface at least this new law protects rights on two sides of the argument. This article from Philadelphia points out how liberty rights are protected as well as property rights.

Johnny Depp gun story has a hole in it

Since 1934, civilians cannot own automatic weapons without extensive regulation encompassed by the National Firearms Act. Actor Johnny Depp, talking about his recent portrayal of gangster John Dillinger, made some comments about firing a Thompson Machine gun and this story was questioned by the LA Times.

Citizens can own automatic weapons after receiving a letter from the Chief Law Enforcement Officer of the jurisdiction in which they reside and then after an accepted application to the BATFE. Once this process goes through that individual can possess the weapon.

Another way to possess the weapon is with an NFA gun trust and we can do those. This is actually an estate planning tool that may allow more than one individual to possess the weapon and also establishes provisions for the item to pass to others.

Jackson family battles over estate

Here is an article from MTV news about Michael Jackson's estate. Whether the estate is millions of dollars or hundreds, some things remain the same. We have done several probate matters and a will always makes things easier and more organized for the family, but does not guarantee a trouble free experience. When a family is diverse and members have not spoken in years, coming together to divide an estate can still be a difficult time.

Happy Fourth of July

However you celebrate, have a great day!

Passing a drug test

This subject comes up frequently in court. Recently, I have seen people outsmart themselves by attempting to "mask" or evade the results of a test by illegitimate means. I Googled "Passing a drug test" and was amazed by the plethora of results. The problem is that often a test does not stand alone, and drug use may be corroborated by witnesses or established by other means, and so "passing" the test may only serve to diminish one's credibility in court.

The best advice I can give is to not take illegal drugs. If you have, stop using long before you come to court.

Grandparents and child custody

Over the past few months I have been involved in several of these cases. As with any case involving children's custody, the best interest of the child controls and is the central issue. While parents have a constitutionally protected superior right to raise their child, that right is not absolute. If there is proven drug use in the parent's home or clear evidence of abuse or negligence, those elements may rise to the level of dependency and neglect and then the parents' rights may be overcome by what is best for the safety and well being of the child. If staying in the parent's home produces a risk of immediate and irreparable harm to the child, the court may act to protect the child.

Murfreesboro 12th in nation in growth

More evidence from the Daily News Journal that the Boro is a growing concern. Good times!

Kirkuk

The Washington Post published this article about a recent bombing in Kirkuk, where I spent much of my time in Iraq. Any story about this northern, predominantly Kurdish city grabs my attention.

A departure from unilateral patrols in urban centers will mean less direct American conflict but likely an increase in overall violence as power vacuums fill. Kirkuk, Iraq's equivalent of Houston, and a hotbed of multi-cultural tensions may be a problem as Kurds assert power. I like the Kurdish people and once had the opportunity to represent some Kurdish people here in Middle Tennessee.

Federal Judge drops DCS from school lawsuit

The Daily News Journal posts this article about DCS involvement in grade schools. I think the point here is that local school officials allowed the interview.

I am in Juvenile Court here in Rutherford County every week, if not multiple times a week. I am frequently impressed by the professionalism and care of the DCS employees with whom I come into contact. The rights of parents to raise their children as they see fit are superior to all others and must be protected. The counter argument is that the state has a duty to zealously defend its children from negligent or abusive guardians. This potential conflict can spark high emotions and the consequences of a bad decision can be devastating to individuals and whole families.

Discrimination Case: Justices Rule for White Firefighters in Bias Case

We have had several clients and prospective clients come to us for advice about possible discrimination in the workplace. This New York Times article illustrates the process fairly well. The key to beginning litigation is the EEOC "right to sue" letter. Go to the EEOC site and learn more about what to do, and most importantly, when to file a complaint. If you come see us and tell us about something that happened a couple of years ago, it may be too late.

Iranian theocratic suppression of civil rights

I have represented several immigrants with various matters and I am always somewhat amazed by the apprehension the immigrant has towards the judicial system. When I consider from where my client has come and the judicial or political system they grew up with, this becomes easier to understand. I remember my time in Iraq and stories I was told of life without due process or equal protection and I am more grateful and respectful of our system. Here is a good article that sheds some light on a system that openly violates principles of representative government and human rights.

Jon and Kate divorce talk

Last night the couple announced, with little surprise, that they would separate. My wife has watched this show for years and so I have watched some with her. I noticed a couple years ago that they both seemed to have changed, no doubt due to the dynamics of having videographers in their home all the time. I realized that I did not like Kate as much as I had originally and that Jon had gone from a hard working provider to something of a petulant wimp.

The web is abuzz with talk about them. Here is a discussion from some Hollywood divorce attorneys about scenarios for child custody, and some of the opinions are surprising.

We handle divorce cases here and it is frequently emotionally charged. When children are involved, the statutory language "best interests of the child" almost always prevails.

Importance of getting the NFA Trust correct

David Goldman cites a recent decision that highlights the risk involved with a faulty NFA application. Scary stuff and a not so subtle reminder that the BATFE does not play.

Step-Parent Adoption

Here is another area of law in which we have been working and about which we are very excited. I found this excellent discussion on the web. Give us a call and let's talk about how we can help you.

Child Custody: Child Located After Endangered Child Alert

We have had several cases like this over the past few months, though this story out of East Tennessee highlights the need for a proactive approach when dealing with a volatile domestic situation, especially one where an infant is involved.

Daditude

Great article on the Daily News Journal! A reflection on Father's Day helps to highlight some of the changes in our culture while keeping in mind some things that never change.

Social Security process

I am pleased to work with many clients to help them navigate the Social Security Claims process. Here is a very informative article that helps break down what to expect.

Bankruptcy consultation

Over the past few months, as the economy has struggled in many areas and regions, I have had the opportunity to talk with several people who were concerned about their job and whether or not they could keep their home. I told many of these people that they may have other options besides bankruptcy and just the consultation with them was useful. Here is a good article.

Why hire a lawyer to create an NFA Gun Trust

My friend David Goldman says it best. If you have a trust document you have copied from someone, or tailored a Quicken trust to make it fit your situation, bring it in and let us review it to make sure it will work.

Tennessee Doing OK

Here's a good article from the Daily News Journal, Tennessee is not doing that bad!

Fun to blog again

I blogged a few years ago when I was serving a tour of duty in the military but have not since then. This will be a blog about my law practice (at least what I can talk about) views on current laws and legislation, and whatever else comes up. Welcome!

NFA Gun Trusts

This is an exciting new area of law for us. We've formed a partnership with TNgunowners.com and with a local weapons manufacturer. I'll post more later, but this is something we can do, do it correctly, and we can provide legislative updates down the road. Give us a call at 615-893-1239.